TTAB Upholds Rejection of Specimens for "IT'S ABOUT THE FABRICS" for Performance Fabrics

The Board affirmed the USPTO's refusal to register the proposed mark IT'S ABOUT THE FABRICS for performance fabrics, finding that on applicant's specimens of use the phrase refers to a component of clothing rather than to fabric offered by itself. Moreover, applicant's website specimens of use were not acceptable because they provided only a means of getting information about applicant’s clothing items and not a means for ordering its fabrics. In re Striker Brands LLC, Serial No. 88519404 (May 19, 2022) [not precedential] (Opinion by Judge Cheryl S. Goodman).

All three of applicant's specimens of use included the phrase IT’S ABOUT THE FABRICS, the TM designation, and an identification of fabrics of specific types. Applicant argued that the specimens constituted point-of-sale displays, and further that the third specimen did not refer to the end products, but rather "merely gives details as to what the fabrics are made of, how the fabrics are made, the benefits of the fabrics, and the differences between the fabrics associated with the Applied-For Mark and other fabrics."A link labeled "Click here to inquire about our fabrics" led to information about applicant's fabrics.

Reviewing the submitted specimens, the Board agreed with Examining Attorney Jared M. Mason that the specimens identify a component of clothing, rather than raw fabric goods.

As used on Applicant’s first, second and third specimens, IT’S ABOUT THE FABRICS creates a direct association between integral features built into the finished clothing items, namely performance fabric and their features. The specimens indicate that Applicant’s clothing uses high performance fabrics in its finished clothing goods that contain, for example, Hydrapore laminate for protection from extreme elements, ultraviolet protection factor for protection from ultraviolet rays, and Permanent Cooling Technology with an automatic cooling function to make the wearer feel cooler.

In sum, "applicant’s use of ITS ABOUT THE FABRICS supports a finding that consumers who encounter the mark will perceive it as referring to an integral component of the finished clothing items, namely specialized performance fabrics built into the clothing, and not a reference to the raw materials--fabric--used for the manufacture of clothing."

As to applicant's (third) website specimen, "[i]nformation that we would consider essential to a purchasing decision is absent." See In re Siny Corp. [TTABlogged here].

There is no information at all regarding the price, or even a range of prices, for fabric goods. There is no information regarding the weight or thickness of the fabric or the dimensions in which a bolt of the fabric would be available. There is no information about the minimum quantities one may order, how one might pay for the products, or how the goods would be shipped. We find that customers would need a great deal more information about the Permanent Cooling Technology fabric before they would be prepared to purchase it.

And so, the Board affirmed a refusal to register.

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Text Copyright John L. Welch 2022.